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In June 2022, San Francisco voters approved Proposition G, which will require covered employers to provide paid public health emergency leave (PHEL) to their employees in San Francisco during a public health emergency. The ordinance will become effective on October 1, 2022.

For organizations with employees working in San Francisco, here are some key items to be aware of until further guidance is released by the San Francisco Office of Labor Standards Enforcement (OLSE).

Which Employers Are Covered?

The ordinance will apply to employers of 100 or more employees worldwide, with an exception for certain nonprofit organizations. If an employer has unionized employees, the ordinance will not apply to employers covered by a bona fide collective bargaining agreement that expressly waives the ordinance’s requirement in clear terms. The ordinance also covers employees of the City of San Francisco but does not apply to those who work for other government entities.

How Is an Employee Defined?

According to the ordinance, an employee of a covered employer is “any person providing labor or services for remuneration who is an employee under California Labor Code Section 2775,” including a part-time or temporary employee, and who performs work within the geographic boundaries of the city. Also included in the definition of an employee is “a participant in a Welfare-to-Work Program when the participant is engaged in work activity that would be considered ‘employment’ under the federal Fair Labor Standards Act (FLSA)… and any applicable U.S. Department of Labor Guidelines.”

What Is a Public Health Emergency?

The ordinance states it is “a local or statewide health emergency related to any contagious, infectious, or communicable disease, declared by the City’s local health officer or the state health officer... or an Air Quality Emergency.”

When Can an Employee Use PHEL?

Employees may use PHEL during a public health emergency if they are unable to work due to any of the following:

• Recommendations or requirements of a health order related to the public health emergency, or the employee is caring for a family member subject to such an order.

• Employee has been advised by a healthcare provider to isolate or quarantine, or the employee is caring for a family member who has been advised to do so.

• The employee is experiencing symptoms of and seeking a medical diagnosis or has received a positive medical diagnosis for a possible infectious, contagious, or communicable disease associated with the public health emergency, or the employee is caring for a family member who is experiencing symptoms.

• The employee is caring for a family member whose school or place of care has been closed or whose care provider is unavailable due to the public health emergency.

• An air quality emergency, if the employee primarily works outdoors and is a member of a “vulnerable population.”

Employers of certain healthcare providers or emergency responders may elect to limit PHEL for those employees under certain circumstances.

How Much Leave Will Employees Receive?

On October 1, 2022, and on January 1 of each following year, employers must allocate PHEL for that year as follows:

• Employee working a full-time, regular, or fixed Schedule: An amount equal to the number of hours the employee regularly works or takes paid leave over a two-week period, not to exceed 80 hours

• Employee whose weekly hours vary: An amount equal to the average number of hours the employee worked or took paid leave over a two-week period during the previous calendar year (or during the previous six months if not employed on October 1 or January 1), or since the employee’s start date if after the beginning of the previous calendar year, not to exceed 80 hours (or since the employee’s start date if employed for fewer than six months if not employed on October 1 or January 1)

What Is the Rate of Pay for PHEL?

Non-exempt employees will receive either the regular rate for the workweek in which the employee uses PHEL or by dividing total wages – excluding overtime premiums – by total hours worked in the full pay periods of the 90 days of employment before PHEL use. For exempt employees, “pay shall be calculated in the same manner as the Employer calculates wages for other forms of paid leave,” the ordinance states.

Are There Notice, Posting, and Record-Keeping Requirements?

Covered employers must post an OLSE-created notice in a conspicuous place at any workplace or job site where any of its employees work and, where feasible, by providing it to employees via electronic communication (email, text, and/or posting in a conspicuous place in an employer’s web-based or app-based platform).

Employers must display the amount of PHEL available on paystubs or other mandatory written notices employees receive each payday. Employers must retain records of employees’ hours worked and PHEL taken for four years.

Covered employers have until October 1, 2022, to prepare for this new ordinance. If you have any questions, please contact the California Legal Services team at CAinfo@employerscouncil.org.